1998-1999-2000-2001

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (WILDLIFE PROTECTION) BILL 2001 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

New clauses to be moved on behalf of the Government

(Circulated by authority of the Minister for the Environment and Heritage,
Senator the Hon Robert Hill)

ISBN:  0642 460116

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (WILDLIFE PROTECTION) BILL 2001
NOTES ON CLAUSES

SCHEDULE 1 – AMENDMENT OF THE ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999

(1)	Item 1A After paragraph 160(2)(c) – Requirement to take account of Minister’s advice
This clause omits item 1A, which required that declarations of approved wildlife trade operations (clause 303FN), approved wildlife trade management plans (clause 303FO) and accredited wildlife trade management plans (clause 303FP) must be referred to the Environment Minister for assessment under Part 8 of the Act if the relevant harvesting operations are environmentally significant.  This is replaced by new clause 303FRA Assessments.

(2)	Item 1B After subsection 160(2) – Requirement to take account of Minister’s advice
This clause omits Item 1B, which was a technical clause clarifying the operation of proposed new paragraphs 160(2)(ca) - (cc).

(3)	Item 10A After subsection 238(4) – Minister may issue permits
This amendment deletes Item 10A, which noted that scrimshaw or any other product of commercial or scientific whaling must not be prescribed as a personal item in the regulations referred to under subsection 238(3).

(4)	Item 10B Subsection 266A(1) – Register for consultation about permit applications
This amendment removes this item.  The effect is that individuals and organisations are not able to register their interest in receiving advice of applications for permits issued under Part 13A as part of the register for consultation about permit applications established under s266A.

(5)	Clause 303BA – Objects of the Part
This amendment deletes subclause (g), which referred to ensuring the humane treatment of individual animals involved in the international movement of wildlife specimens, on the grounds that this is already addressed by subclause (e).

(6)	Clause 303BA – Objects of the Part
This amendment rewords subclause (h) so that the precautionary principle is taken into account “in making” decisions (rather than “during” decisions).

(7)	Clause 303BAA – Certain indigenous rights not affected
This amendment proposes an alternative formulation of words relating to indigenous rights.  The proposed clause provides that nothing in Part 13A affects the capacity for an indigenous person to continue, in accordance with law, the traditional use of an area for hunting or food gathering (except for the purposes of sale), or ceremonial or religious purposes.

(8)	Clause 303BC – Definitions
This amendment deletes the definition of bear product.

(9)	Clause 303BC – Definitions
This amendment deletes the definition of cat product.

(10)	Clause 303BC – Definitions
This amendment deletes the definition of listed migratory bird.

(11)	Clause 303BC – Definitions
This amendment deletes the definition of trophy.

(12)	Clause 303CB – Stricter domestic measures
This amendment provides that any instruments issued by the Minister in relation to stricter domestic measures for CITES specimens are disallowable for the purposes of section 46A of the Acts Interpretation Act 1901.

(13)	Clause 303CD – Imports of CITES specimens
This amendment revises subclause (4)(c) to read “…the specimen belongs to a species that is not specified in the regulations…”

(14)	Clause 303CDA – Regulations relating to CITES exports or imports
This clause deletes this clause.  Clause 303CDA provided that “cat” and “bear” products cannot be prescribed as a “personal or household effect” for the purpose of clauses 303CC(6) and 303CD(3), and that species of the cat (except domestic cats) and bear families can not be one of the CITES II specimens that can be imported without a permit under the personal baggage exemption (clause 303CD(4)). 

(15)	Clause 303CDB – Export or import of trophies
This clause deletes this clause, which provided that “trophies” could not be prescribed as a personal or household effect for the purpose of exports or imports (clauses 303CC(6) and 303CD(3)).

(16)	Clause 303CG – Minister may issue permits
This clause omits the words “subsections (3), (4A) and (4B)” and substitutes “subsection (3)”.

(17)	Clause 303CG – Minister may issue permits
This clause deletes subclause (4A), which provided that the Minister must not issue a permit for the import of a bear product or a cat product.

(18)	Clause 303CG – Minister may issue permits
This clause deletes subclause (4B), which provided that the Minister must not issue a permit for the import of a trophy.

(19)	Clause 303DB – Listing of exempt native specimens
This amendment deletes from clause 303DB(6), the words “or a species of listed migratory bird”.

(20) – (21)	Clause 303DC – Minister may amend list
These amendments substitute the consultation procedures set out in subclauses (3)(c), and (3A) to (3E) with a requirement that before amending the list of exempt native specimens, the Minister may consult such other persons and organisations as the Minister considers appropriate.  Subclauses (3A) to (3E) are deleted.

(22)	Clause 303DD – Exports of regulated native specimens
This amendment omits “or a live freshwater fish” and substitutes “, or a live freshwater fish”.  This is a minor grammatical correction.

(23)	Clause 303DG – Minister may issue permits
This clause omits the words “subsections (3) and (4)” and substitutes “subsections (3), (3A) and (4)”.

(24)	Clause 303DG – Minister may issue permits
This amendment omits “or a live freshwater fish” and substitutes “, or a live freshwater fish”.  This is a minor technical correction.

(25)	Clause 303DG – Minister may issue permits
This amendment amends subclause (3A) by noting that before issuing a permit for the export of a live terrestrial invertebrate or a live freshwater fish prescribed by the regulations for the purposes of subclause 303DD(3)(ba), the Minister can also be satisfied that the proposed export would be an export from an approved aquaculture program (303FM).

(26)	Clause 303DG – Minister may issue permits
This amendment amends subclause (4)(a)(i) by making it a requirement that before issuing a permit for the export of regulated native specimens, the Minister must be satisfied that the export will not be detrimental to the survival (rather than conservation status) of any taxon to which the specimen belongs.

(27)	Clause 303DG – Minister may issue permits
This clause omits from paragraph (4)(d) the words “or a species of listed migratory bird”. 

(28)	Clause 303DG – Minister may issue permits
This amendment omits the words “or any wildlife conservation plan” from subclause (4)(d).

(29)	Clause 303DG – Minister may issue permits
This amendment deletes subclause (10), which provided that the Minister must not issue a permit for a listed threatened species if there is no recovery plan for that species, and the time allowed for making the recovery plan has expired.

(30)	Clause 303EB – Listing of specimens suitable for live import
This amendment inserts subsection (3), which notes that the list of specimens suitable for live import may only contain specimens that are live animals or live plants.

(31)	Clause 303EN – Minister may issue permits
This amendment deletes subclause (5), which provided that the meaning of the term “not likely to threaten biodiversity” would be prescribed in regulations.

(32)	Clause 303FC - Export or import for the purposes of research
Amends subclause 303FC(1)(b)(ii) by omitting the word ‘and’. 

(33)	Clause 303FC - Export or import for the purposes of research
This clause amends subclause 303FC(1)(b) to include the maintenance and/or improvement of human health as an object for research.

(34)	Clause 303FC - Export or import for the purposes of research
This amendment replaces subclause 303FC(1)(c), which requires that any commercial purpose is incidental to the purpose of the export, with a requirement that the export is not primarily for commercial purposes. 

(35)	Clause 303FC – Export or import for the purposes of research
This amendment inserts the phrase ‘if any’ in subclause 303FC(1)(d) so that the subclause provides that such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.   

(36)	Clause 303FC - Export or import for the purposes of research
Amends subclause 303FC(2)(b)(ii) by omitting the word ‘and’. 

(37)	Clause 303FC - Export or import for the purposes of research
Amends subclause 303FC(2)(b) to include the maintenance and/or improvement of human health as an object for research.

(38)	Clause 303FC - Export or import for the purposes of research
This amendment replaces subclause 303FC(2)(c), which requires that any commercial purpose is incidental to the purpose of the import, with a requirement that the import is not primarily for commercial purposes. 

(39)	Clause 303FC - Export or import for the purposes of research
This amendment inserts the phrase ‘if any’ in subclause 303FC(2)(d) so that the subclause provides that such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.   

(40)	Clause 303FD - Export or import for the purposes of education
This amendment replaces subclause 303FD(1)(b), which requires that any commercial purpose is incidental to the purpose of the export, with a requirement that the export is not primarily for commercial purposes. 

(41)	Clause 303FD - Export or import for the purposes of education
This amendment inserts the phrase ‘if any’ in subclause 303FD(1)(c) so that the subclause provides that such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.   

(42)	Clause 303FD - Export or import for the purposes of education
This amendment replaces subclause 303FD(2)(b), which requires that any commercial purpose is incidental to the purpose of the import, with a requirement that the import is not primarily for commercial purposes. 

(43)	Clause 303FD - Export or import for the purposes of education
This amendment inserts the phrase ‘if any’ in subclause 303FD(2)(c) so that the subclause provides that such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.   

(44)	Clause 303FE - Export or import for the purposes of exhibition
This amendment replaces subclause 303FE(1)(b), which requires that any commercial purpose is incidental to the purpose of the export, with a requirement that the export is not primarily for commercial purposes. 

(45)	Clause 303FE - Export or import for the purposes of exhibition
This amendment inserts the phrase ‘if any’ in subclause 303FE(1)(c) so that the subclause provides that such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.   

(46)	Clause 303FE - Export or import for the purposes of exhibition
This amendment replaces subclause 303FE(2)(b), which requires that any commercial purpose is incidental to the purpose of the import, with a requirement that the import is not primarily for commercial purposes. 

(47)	Clause 303FE - Export or import for the purposes of exhibition
This amendment inserts the phrase ‘if any’ in subclause 303FE(2)(c) so that the subclause provides that such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.   

(48)	Clause 303FE - Export or import for the purposes of exhibition
This amendment deletes the definition of “exhibition” in subclause (3) and replaces it with the following: “exhibition includes a zoo or menagerie”. The definition of “travelling exhibition” and the definition of “zoo” are deleted.

(49)	Clause 303FF - Export or import for conservation breeding or propagation
This amendment replaces subclause 303FF(1)(d), which requires that any commercial purpose is incidental to the purpose of the export, with a requirement that the export is not primarily for commercial purposes. 

(50)	Clause 303FF - Export or import for conservation breeding or propagation
This amendment inserts the phrase ‘if any’ in subclause 303FF(1)(e) so that the subclause provides that such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(51)	Clause 303FF - Export or import for conservation breeding or propagation
This amendment replaces subclause 303FF(2)(d), which requires that any commercial purpose is incidental to the purpose of the import, with a requirement that the import is not primarily for commercial purposes. 

(52)	Clause 303FF - Export or import for conservation breeding or propagation
This amendment inserts the phrase ‘if any’ in subclause 303FF(2)(e) so that the subclause provides that such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.   

(53)	Clause 303FG - Export or import of household pets
This amendment replaces subclause 303FG(1)(b), which requires that any commercial purpose is incidental to the purpose of the export, with a requirement that the export is not primarily for commercial purposes. 

(54)	Clause 303FG - Export or import of household pets
This amendment replaces subclause 303FG(2)(c), which requires for a live CITES animal that any commercial purpose is incidental to the purpose of the export, with a requirement that the export is not primarily for commercial purposes. 

(55)	Clause 303FG - Export or import of household pets
This amendment replaces subclause 303FG(3)(b), which requires for a live import that any commercial purpose is incidental to the purpose of the import, with a requirement that the import is not primarily for commercial purposes.

(56)	Clause 303FG - Export or import of household pets
This amendment deletes subclauses (8), (9), (10), (11) and (12), which prescribe a public consultation process to be undertaken by the Minister before amending the list of native household pet animals referred to in subclause (4).

(57)	Clause 303FH - Export or import of personal items
This amendment replaces subclause 303FH(1)(b), which requires that any commercial purpose is incidental to the purpose of the export, with a requirement that the export is not primarily for commercial purposes. 

(58)	Clause 303FH - Export or import of personal items
This amendment replaces subclause 303FH(2)(b), which requires that any commercial purpose is incidental to the purpose of the import, with a requirement that the import is not primarily for commercial purposes. 

(59)	Clause 303FI – Export or import for the purposes of a travelling exhibition
This amendment inserts a new clause, which establishes the criteria for the export or import of a specimen for use in a travelling exhibition:
•	the export or import is not primarily for commercial purposes; and
•	the export or import meets any other conditions specified in the regulations.

It is intended that the grant of a permit under this category will be subject to conditions to the effect that:
•	In the case of the export of a specimen from Australia or an external Territory, the specimen is returned to Australia or the Territory within a reasonable period after conclusion of the travelling exhibition; and
•	In the case of the import of a specimen to Australia or an external Territory, the specimen is exported from Australia or the Territory within a reasonable period after conclusion of the travelling exhibition.

These conditions will extend to any progeny born during the exhibition.

(60)	Clause 303FN – Approved wildlife trade operation
This amendment omits subclause (4) and substitutes new subclauses (4) and (5), which provide that in deciding whether to declare a wildlife trade operation the Minister must have regard to:
•	the significance of the impact of the operation on an ecosystem (for example, an impact on habitat or biodiversity) and the effectiveness of the operation’s management arrangements (including monitoring procedures); and
•	whether legislation relating to the protection, conservation or management of the specimens to which the operation relates is in force in the State or Territory concerned; and whether the legislation applies throughout that State or Territory; and whether the Minister is of the opinion that the legislation is effective.

(61)	Clause 303FN – Approved wildlife trade operation
This amendment inserts subclauses (7), (8) and (9), which set out the provisions for making fresh declarations.

(62)	Clause 303FP ‑ Accredited wildlife trade management plan
This amendment deletes paragraph (aa) from subclause (3).  Subclause (aa) provided that the Minister must not declare a specified plan as an accredited wildlife trade management plan unless satisfied that the implementation of the plan would be beneficial to the conservation of the taxon to which the plan relates.  

(63)	Clause 303FP ‑ Accredited wildlife trade management plan
This amendment deletes subclause (9) and replaces it with a new clause, which provides that the Minister is not required to publish on the Internet a report about specimens taken under the plan:
•	if publication could be expected to prejudice substantially the commercial interests of a person; or
•	if it would be detrimental to the survival or conservation status of a taxon to which the plan relates.

(64)	Clause 303FP ‑ Accredited wildlife trade management plan
This clause deletes subclause (10), which provided that an instrument declaring a plan to be an accredited wildlife trade management plan is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(65)	Clause 303FR ‑ Public consultation
This amendment omits subclause (1), which provided that the Minister notify each person and body registered under section 266A and publish on the Internet, information relating to a proposed declaration under clause 303FN, 303FO or 303FP.  It substitutes the clause with new provisions, which provide that the Minister must publish information relating to the proposed declaration on the Internet and invite persons and organisations to comment.

(66)	Clause 303FR – Public consultation
This clause deletes subclause (1A), which described the information a notice in subclause (1) must contain.

(67)	Clause 303FR – Public consultation
This clause deletes the words “subsection (1A)” and substitutes “subsection (1)” in 303FR(2).

(68)	Clause 303FR – Public consultation 
This amendment deletes subclause (4), which required the Minister to publish decisions in relation to declarations under clause 303FN, 303FO or 303FP on the Internet.

(69)	Clause 303FRA ‑ Assessments
This amendment inserts a new section - 303FRA – Assessments, which provides that regulations may be made that prescribe a process to be followed in assessing the potential impacts on the environment of:
•	a wildlife trade operation, other than an operation mentioned in paragraph 303FN(10)(d); or
•	the activities covered by a management plan under clauses 303FO and 303FP;
•	if the operations and activities are likely to have a significant impact on the environment.

If regulations are made, the process must be followed before the Minister declares the operation under 303FN(2) or the plan under 303FO(2) or 303FP(2).

The regulations may also:
•	apply Part 8 of the Act (except sections 82-84) and the other provisions of this Act (so far as they relate to that Part) subject to such modifications specified in the regulations; and
•	provide for exemptions from the assessment process.

This clause also provides definitions for modifications and wildlife trade operation.

(70)	Clause 303GB – Exceptional circumstances permit
This amendment amends the statement that a permit issued under this clause must be in accordance with CITES to read that the Minister must not issue a permit under this clause unless the grant would not be contrary to CITES. 

(71)	Clause 303GB – Exceptional circumstances permit
This amendment omits subclause (4A), which provided that if a permit issued under this clause expired or had been revoked or cancelled, a new permit could not be issued under this clause to the same person or in relation to the same activity.  

(72)	Clause 303GB – Exceptional circumstances permit
This clause inserts new subclauses (7), (8) and (9), which provide for a public consultation process to occur prior to the granting of a permit under this clause. 

(73)	Clause 303GB – Exceptional circumstances permit
This amendment omits subclause (10), which provided that the meaning of the term “exceptional circumstances” would be prescribed in regulations.  

(74)	Clause 303GEA – Public consultation on permits
This amendment omits this clause.  Public consultation is provided by clauses 303DC(3), 303GB and 303FR.

(75)	Clause 303GZ – Inventory of scientific specimens
This amendment omits this clause, which provided that scientific organisations could provide the Secretary with a list of specimens held by the organisation and that are available for exchange with other scientific organisations. It required that the Secretary publish on the Internet an inventory of such specimens. 

(76)	Item 36A After section 523 – 523A Management plans
This amendment deletes Item 36A, which applied to an action that is the making or implementation of a management plan.

(77) - (83)	Items 84HA - 84HH Amending Part 13 in relation to accrediting fisheries
Items 84HA to 84HH amend Part 13 of the EPBC Act to provide the Minister for the Environment with the capacity to accredit fisheries management plans and management regimes in relation to threatened and migratory species.  This is consistent with existing EPBC Act provisions for cetaceans and listed marine species.  Therefore, if a person kills, injures, takes, keeps, trades, or moves a member of a listed threatened species or listed migratory species, that person will not commit an offence if the action is provided for and taken in accordance with a management plan or management regime for a fishery that has been accredited by the Environment Minister.  The Minister may only accredit such a plan or regime if satisfied that it meets the requirements related to the protection and conservation of relevant listed species, such as not adversely affecting the survival or recovery of a listed threatened species.

These items also provide that the Minister may accredit management regimes for fisheries.  This allows for a situation where, for example, management plans are being prepared for a fishery.  Sections 7 and 8 of the Fisheries Administration Act 1991 empower the Australian Fisheries Management Authority to devise management regimes in relation to Australian fisheries.

Item 84HB ensures that the conditions under which the Minister may accredit a fisheries plan or regime for the purposes of providing a defence against taking, killing, injuring, trading, keeping or moving a listed threatened species are consistent with the conditions under which he or she may issue a permit under section 201 for the same purpose.